Extraditing Assange

In a five to two decision, the British Supreme Court ruled Wednesday that because a Swedish prosecutor is properly characterized as a “judicial authority,” Julian Assange is to be extradited from England to Sweden to face accusations of rape and unlawful coercion, but Dinah Rose, arguing for the defense, immediately asked for and received a fourteen day period in  which to make an application to reopen the case, an application that relates to the Vienna Convention.

Speaking for the majority, Nicholas Phillips gave an overview of changes to British extradition law and procedures since the attacks of September 11th, noting that it used to be the case that the country in which the defendant finds himself would consider the facts and merits of the case before extradition, but that now those facts and merits are considered only in the country seeking extradition. He explained that the French phase “autorité judiciaire” encompasses prosecutors as well as judges, and he asserted that since some of the relevant law is written in French, the meaning of the French phrase must be taken into consideration.

Even if the application is made by Assange’s lawyers and then denied by the court, Assange could still appeal to the European Court of Human Rights in Strasbourg, France, and reports differ as to whether such an appeal would be filed only after he is extradited, or whether the extradition would be stayed until the Strasbourg court rules.

By far the most pressing question is whether Wednesday was a sad day for freedom of expression or a sad day for rapists or both. It is by no means clear that Assange would have found himself in the unenviable position of having to defend himself against sex crime accusations had he not done the journalistic work he has done, exposing multiple war crimes as well as 15000 previously covered up fatal Iraqi casualties and the transfer by the United States  of thousands of prisoners into Iraqi custody despite what was very likely a reasonable belief on  the part of the U. S. that they would be tortured (It is a clear breach of international law to transfer a prisoner into the custody of any force which will torture him or her).

The release of those records should go some distance toward resolving very many cases of disappearance and torture, and is a boon to human rights investigators and historians worldwide.

What does seem clear is that the technology behind WikiLeaks’ so-called  “strong” encryption which, according to famed whistleblower Daniel Ellsberg, can actually prevent even the National Security Agency from discovering who a journalist’s source is, poses a direct threat to the opacity of the national security establishment.

Insofar as this technology goes, the cat is very much out of the bag, and others are free to pick up where Assange left off even if he is ultimately imprisoned in Sweden or put on trial in the United States for publishing what he has published. The United States has utterly failed to explain why some leaks of classified information are prosecuted and others (such as those to the prestige press) are not, leaving many to conclude that it likes some leaks (those that help the war effort, according to former FBI agent and attorney Coleen Rowley) but scowls on others; how the Justice Department can prosecute Assange and not The New York Times remains entirely unknown.

Were governments not so intent to spy on journalists, and if they would not try to find out through extrajudicial means the identity of journalists’ sources, the press would not find itself in the position it does: having to become expert in electronic countersurveillance in order to promise to sources what the law allows them in many of the United States: confidentiality. For those same governments then to turn around and accuse journalists of espionage is the height of bad faith.

The origins of this technology are to be found in the so-called “crypto wars” of the 1990’s, in which universities and the private sector were pitted against the U. S. government in a struggle over whether private citizens would have access to encryption which could not be broken by intelligence and law enforcement agencies. Ultimately the government lost, enabling journalists to safeguard their sources, doctors to protect the medical privacy of their patients, and lawyers to ensure their clients’ secrets. The government argued that were strong encryption to be commercially available, it would greatly help kidnappers, terrorists, and drug traffickers defeat entirely legitimate surveillance, but ultimately the technology outstripped the law and the question wasn’t resolved in the courts.

Rather, strong encryption became widely available, and WikiLeaks has become the first known media organization effectively to apply it for the protection of journalistic sources. Such encryption, it is fair to say, is a real thorn in the side of the national security establishment, and an arrow in the quiver of privacy proponents.

When General Mike Mullen and then-Secretary of Defense Robert Gates held a press conference in essence declaring Assange an enemy of the state, the vast majority of journalists behaved as if they had just received their marching orders – no smear, no level of negative bias was from that point forward beneath them, and lo, Assange became a demon almost overnight. It was as if he became the paradigmatic “undefamable plaintiff,” someone of such ill-repute that it has become impossible to libel or slander him.

In a stupendous feat of mistranslation of the Swedish, both The New York Times and CNN reported that he was wanted for “molestation” while omitting that the alleged victims were adult women, thus creating in the minds of less careful readers and viewers the impression that he was sought in connection with a sex crime against a child and thereby doing him a profound disservice.

Attorney and former FBI agent Coleen Rowley wrote in an email,

“There are all kinds of reasons to suspect that Assange is the victim of a political persecution and that the extradition being sought by and to Sweden is merely to enable his further extradition to the U.S. for having published information revealing U.S. government wrongdoing.”

She continued,

“Our government has significantly undermined the rule of law (both constitutional and international law) since 9/11 in its attempt to become the world’s sole remaining ‘superpower’ not subject to the human rights laws or guarantees of civil rights it wishes other countries to follow. So it will not be surprising to see this ‘American exceptionalism-hubris’ play out again in vindictive prosecution of a news publisher who was the messenger of information the U.S. government did not want its own citizens to know.  I believe American citizens, however, will eventually reap ‘The Sorrows of Empire’ (as former CIA official Chalmers Johnson warned) and we will all pay the price for our government’s illegal actions on the world stage.”

D. H. Kerby is a writer living in Philadelphia.